N95 Is A Generic Term: IPAB Stays Operation Of Registration Of N95 Trademark

The Intellectual Property Appellate Board has stayed the operation of registration of 'N95' as trademark.

The term N95 is a generic term in the mask industry, the same is not capable of being neither registered or protected as trade mark nor the same can be appropriated by any one entity,  the Board observed while considering a Rectification Application is filed by SASSOON FAB International Pvt. Ltd.

The company engaged in the business of masks, had filed the application under Section 57 of Trademark Act, 1999 for Removal of the "N95" label under Reg. No. 4487559 in class 10 registered in favor of one Sanjay Garg.  The company contended that Sanjay Garg had frivolously and fraudulently obtained an unlawful registration of the generic term N95 in class 10. As a result, the company's N95 masks were removed from ecommerce platform www.amazon.in on the basis of complaints lodged by Sanjay Garg. 

The Board headed by Justice Manmohan Singh observed that a generic expression can never be granted registration and/or protection as a trade mark under the trade mark laws. It noted that the wording N95 in the registered mark is descriptive of a characteristic of the masks, specifically that they filter at least 95% of airborne particles and are not strongly resistant to oil is a standard and is a class of respiratory devices and thus is a generic term. The Board observed:

"Because the term N95 is a generic term in the mask industry, the same is not capable of being neither registered or protected as trade mark nor the same can be appropriated by any one entity. The term N95 is in use world over ever since early 1970 have to refer to single respirator face masks which were designed to filter 95% of dust particles to enter the nose or mouth and was initially designed by famous 3M Company for industrial uses and announced the same as an industry standard. The same is on the face of record a generic and/or a descriptive mark which is used extensively not only by members of the trade but by various government authorities, institutions to refer to a particular type of the respiratory mask, which are in huge demands by hospital authorities, healthcare workers, and even general public due to ongoing COVID-19 pandemic and due to government mandate to especially the mark are related to Healthcare. The term N95 further serves as an indicator in the trade to designate the kind, quality, intended purpose and other characteristics of the particular product which is nonproprietary in nature. The registration of the impugned mark was thus barred under the absolute grounds of refusal under Section 9 (1) (b) of the Trade Marks Act, 1999."

In this regard, the board referred to recent Madras High Court judgment in which it was observed that the terms 'Magic' and 'Masala' are commonly used terms by different manufacturers in the packaged food industry and it would be unfair to confer monopoly over the same expression.

The Board further observed that the Trade mark holder is a squatter and has got registered the generic term N95 as a trade mark to blackmail the bonafide users of the said term and to extract illegal monies It was noted that he.is not even using the said term nor is it dealing in the masks or for that matter in any goods for which it applied the said mark.

"Given current public sentiment during this global public health crisis and since the dishonesty factor holds the cardinal principle until the Rectification Petition is finally decided the operation of the registration No. 4487559 in class 10 Registered under Certificate No. 1633656 shall remain stayed", the Board observed in the interim order. The application is posted on 5th March 2021 for further consideration.

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